You ask whether certain information is subject to required public disclosure under chapter
552 of the Government Code. Your request was assigned ID# 123196.

The City of El Paso (the "city") received two requests for information. One request is for
information relating to the investigation of allegations made to the media in anonymous
letters in 1997, and the other is for information relating to any investigation of Sergeant
Angela Sommers. You inform us that there were two separate investigations of the
allegations made anonymously to the media. You have submitted documents from these two
investigations: exhibit C, a special investigation authorized by the Chief of Police, and
exhibit D, a sexual harassment investigation file. A portion of exhibit C is responsive to the
request for information about Sergeant Sommers. You contend that exhibits C and D are
excepted from disclosure pursuant to sections 552.101, 552.103, 552.108, 552.117, and
552.130 of the Government Code. We have considered the exceptions you claim and have
reviewed the documents at issue.

First, we address the issue of whether you met your statutory deadline for requesting a
decision on the disclosure of information relating to Sergeant Sommers. Chapter 552 of the
Government Code imposes a duty on a governmental body seeking an open records decision
pursuant to section 552.301 to submit that request to the attorney general within ten business
days after the governmental body's receipt of the request for information. Having considered
your arguments and the circumstances surrounding the request for information, we conclude
that you did not timely seek a decision from this office regarding the request for information
about the investigation of Sergeant Sommers. When a request for an open records decision
is not made within the time period prescribed by section 552.301, the requested information
is presumed to be public. See Gov't Code § 552.302. This presumption of openness can
only be overcome by a compelling demonstration that the information should not be made
public. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness
overcome by a showing that the information is made confidential by another source of law
or affects third party interests). You claim that the information in exhibit C relating to
Sergeant Sommers is excepted from disclosure under section 552.103. However, you waived
your section 552.103 claim by failing timely raise it. See Open Records Decision No. 551
(1990) (section 552.103 is discretionary), 473 (1987) (governmental body waives protection
of section 552.103 by failing to timely claim it). Therefore, we conclude that you must
publicly disclose the information relating to Sergeant Sommers.

All of exhibit D and portions of exhibit C relate to a sexual harassment investigation. You
contend that these documents are excepted from disclosure under section 552.101 in
conjunction with the common-law right to privacy. Section 552.101 excepts from required
public disclosure information that is considered confidential by law, either constitutional,
statutory, or by judicial decision. The common-law right of privacy is incorporated into the
Open Records Act by section 552.101. For information to be protected by common-law
privacy it must meet the criteria set out in Industrial Found. v. Texas Industrial Accident
Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The Industrial
Foundation court held that information is excepted from disclosure if (1) the information
contains highly intimate or embarrassing facts the release of which would be highly
objectionable to a reasonable person, and (2) the information is not of legitimate concern to
the public. 540 S.W.2d at 685.

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court
addressed the applicability of the right of common-law privacy to the files of a sexual
harassment investigation. The investigation files in Ellen contained individual witness
statements, an affidavit by the individual accused of the misconduct responding to the
allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen,
840 S.W.2d at 525. The court ordered the release of the affidavit of the person under
investigation and the conclusions of the board of inquiry, stating that the public's interest
was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen
court held that "the public did not possess a legitimate interest in the identities of the
individual witnesses, nor the details of their personal statements beyond what is contained
in the documents that have been ordered released." Id.

According to Ellen, the public has a legitimate interest in documents that adequately
summarize sexual harassment allegations and the results of investigations into those
allegations, but not in the identities or detailed statements of the victims and witnesses. See
id; see also Open Records Decision Nos. 473 (1987), 470 (1987) (public has legitimate
interest in job performance of public employees). In this case, we conclude that the
common-law right of privacy protects the names of the victims and witnesses involved in the
investigation of the sexual harassment allegation. We have not marked the names of the
victims and witnesses, but you should redact these names prior to releasing information from
exhibits C and D. We find that exhibit C and the first ten pages of exhibit D adequately
summarize the sexual harassment investigation. Therefore, you should withhold the
remainder of exhibit D, which consists of detailed statements and investigation notes, from
disclosure based on the common-law right to privacy.(1) We have also marked some
additional information in exhibit C that is protected by the common-law right to privacy.

Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency
or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1)
release of the information would interfere with the detection, investigation, or prosecution
of crime." You have explained how releasing some of the information in exhibits C and D
will interfere with the city's ongoing law enforcement efforts. For this reason, we conclude
that the city may withhold the marked information in exhibits C and D from disclosure
pursuant to section 552.108.

Exhibits C and D contain information that is excepted from disclosure under section
552.117(2), which protects the following information about peace officers: their home
addresses, home telephone numbers, social security numbers, and information that reveals
whether they have family members. We have marked the information that is excepted from
disclosure under section 552.117(2). The city must withhold this marked information from
disclosure.

Section 552.130 provides in relevant part:

(a) Information is excepted from the requirement of Section 552.021 if the
information relates to:

(1) a motor vehicle operator's or driver's license or permit
issued by an agency of this state; [or]

(2) a motor vehicle title or registration issued by an agency of this state[.]

We have marked some information in exhibit C that falls within the scope of section
552.130. The city must withhold this marked information from disclosure.

Finally, we note that one of the requestors has a special right of access to some of the
information excepted from disclosure under sections 552.101 and 552.117. See Gov't Code
§ 552.023 (person has special right of access, beyond right of general public, to information
excepted from disclosure by laws intended to protect that person's privacy interests).
Therefore, the city should not redact this requestor's name, address, telephone number, or
family member information from the copies of documents it releases to this requestor.

To summarize, section 552.103 does not except any of the requested information from
disclosure. Section 552.101, in conjunction with the common-law right to privacy, excepts
from disclosure pages eleven through eighty-one of exhibit D, the names of the victims and
witnesses involved in the sexual harassment investigation, and the marked information in
exhibit C. We have marked information that is excepted from disclosure pursuant to sections
552.108, 552.117, and 552.130.

We are resolving this matter with an informal letter ruling rather than with a published open
records decision. This ruling is limited to the particular records at issue under the facts
presented to us in this request and should not be relied upon as a previous determination
regarding any other records. If you have questions about this ruling, please contact our
office.

1. Because we conclude that pages eleven through eighty-one of exhibit D are excepted from disclosure
pursuant to section 552.101, we do not address your additional arguments against the disclosure of this
information.